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1 Volume 15 Issue 2 Article NRDC v. Evans: Northern District of California Delivers Sound Judgment in Protection of Marine Wildlife under the MMPA, Restricting Navy's Use of Sonar Carolyn M. Chopko Follow this and additional works at: Part of the Environmental Law Commons Recommended Citation Carolyn M. Chopko, NRDC v. Evans: Northern District of California Delivers Sound Judgment in Protection of Marine Wildlife under the MMPA, Restricting Navy's Use of Sonar, 15 Vill. Envtl. L.J. 393 (2004). Available at: This Casenote is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Environmental Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

2 2004] Chopko: NRDC v. Evans: Northern District of California Delivers Sound Jud NRDC V EVANS: NORTHERN DISTRICT OF CALIFORNIA DELIVERS "SOUND" JUDGMENT IN PROTECTION OF MARINE WILDLIFE UNDER THE MMPA, RESTRICTING NAVY'S USE OF SONAR I. INTRODUCTION The United States Department of the Navy's (Navy) Surveillance Towed Array Sensor System (SURTASS) Low Frequency Active Sonar (LFA) is a new form of sonar, designed to aid in the development and testing of new naval warfare technologies.' The mission of SURTASS LFA is to detect increasingly quiet enemy submarines in a timely manner. 2 In carrying out this mission, the new technology sends out intense sonar pulses at low frequencies that travel hundreds of miles. 3 Despite the anticipated success of LFA sonar in enhancing national security, many environmentalists claim that this low frequency sonar will have devastating effects on marine wildlife species. 4 Specifically, environmentalists are concerned about the long- 1. See Natural Res. Def. Council v. Evans, 279 F. Supp. 2d 1129, 1137 (N.D. Cal. 2003). See also, Paul C. Kiamos, National Security and Wildlife Protection: Maintaining an Effective Balance, 8 ENVTL. LAw 457, 486 (June 2002) (noting that both Russian and French navies already employ LFA sonar system); Department of the Navy SURTASS LFA Systems Description, at (explaining purpose and operation of SURTASS LFA) [hereinafter SURTASS LFA Website]. 2. See generally SURTASS LFA Website, supra note 1. For further discussion of SURTASS LFA see infra notes and accompanying text. 3. Id. (discussing history and unsecured operational details of SURTASS LFA sonar). 4. See generally Elena M. McCarthy, International Regulation of Transboundary Pollutants: The Emerging Challenge of Ocean Noise, 6 OcEAN & CoASTAL L.J. 257 (2001) (discussing impacts of ocean noise on health of marine mammals and attempts to regulate noise). Marine mammals are "insonified" when exposed to underwater sonar because underwater noise creates interference with the animals' "ecolocating sonars" which they rely on to communicate and navigate. Id. at 269. Powerful sound may "cause tissue in the lungs, ears, or other body parts to rupture or hemorrhage." Id. at Furthermore, "[m]ammals' reaction to sound can range from brief interruptions of normal activities, such as feeding, to short- or long-term displacement from noisy areas." Id. at 270. See also Margot Higgins, Alarm Sounds Over U.S. Navy Sonar Program, ENVIRONMENTAL NEws NETWORK, (Apr. 6, 2001) available at (highlighting claims of environmental groups that Navy failed to address affects of sonar system on long-term health and behavior of whales, dolphins and hundreds of other marine species); Kenneth Weiss, U.S. Navy's Sonar is Danger to Sea Life, Judge Rules, L.A. TIMES, (Aug. 28, 2003), available at /08/27/ html (noting findings of scientists who discovered in- (393) Published by Villanova University Charles Widger School of Law Digital Repository,

3 394 VIILANOVA Villanova Environmental ENVIRONMENTAL Law Journal, LAW Vol. 15, JouRNAL Iss. 2 [2004], Art. [Vol. 3 XV: p. 393 term effects of LFA sonar on the health and behavior of whales, dolphins and hundreds of other marine species. 5 Marine mammals depend on their sensitive hearing for needs such as following migratory routes, locating each other over distances, finding food and caring for their young. 6 Loud noises, particularly those lasting in duration, interfere with the animals' hearing, which in turn threatens their ability to function and survive. 7 Maintaining national security is of particular importance today, especially given the need for increased vigilance following the tragic events of September 11, Military preparedness, including protection against enemy submarine attacks, is an essential element of maintaining a comprehensive national security system. 9 There is no doubt, however, that protecting the world's ocean and sea creatures, dependent on the ocean environment for survival, is of equally great importance. 10 To prevent harm to military readiness and to ensure that military training complies with substantive tense sound can tear delicate air-filled tissues around mammals' brains and ears, resulting in hemorrhaging and death); Natural Resources Defense Council, Navy Sonar System Threatens Whales, NRDC Website, (Sept. 25, 2003) available at (comparing noise generated by Navy's new sonar technology to sound level of "Times Square at rush hour.") [hereinafter NRDC Website]. 5. See NRDC Website, supra note 4 (asserting inadequacy of Navy's environmental impact statement and failure to address long-term effects of LFA sonar on marine mammals). 6. Id. (explaining marine mammals' reliance upon hearing). 7. Id. (explaining effect of noise on marine mammals); see also McCarthy, supra note 4 at (explaining effect of noise on marine mammals). 8. See Dan Meyer and Everett E. Volk, "W"for War and Wedge? Environmental Enforcement and the Sacrifice of American Security - National and Environmental - To Complete the Emergence of a New "Beltway" Governing Elite, 25 W. NEw ENG. L. REv. 41 (2003) (discussing national security measures and consequential impact on environment). The authors address concerns regarding potential expansion of military operations and its impact on the environment. Specifically, the authors note the statement of Vice Adm. James Amerault, Deputy Chief of Naval Operations in a March 2003 Senate hearing: While our naval forces may have decreased in number, our requirement for ranges have not. Today's higher performance aircraft and ships employ weapons of greater capability, but also of greater complexity and unique delivery tactics. The combination of capability, complexity and tactics also translates into the need for larger ranges. Id. at 54; see generally, Paul C. Kiamos, supra note Meyer, supra note 8 at (discussing national defense preparedness in light of existing environmental legislation). 10. See Natural Res. Def. Council v. Evans, 279 F. Supp. 2d 1129, (N.D. Cal. 2003) (discussing need to balance concerns of Navy and environmental groups). 2

4 2004] Chopko: NRDC v. Evans: Northern District of California Delivers Sound Jud "SouND" JUDGMENT requirements of environmental legislation, a careful balance must be maintained. 11 This Note examines the Northern District of California's review of the Navy's SURTASS LFA program and its compliance with environmental laws employed to protect marine wildlife in Natural Resources Defense Council v. Evans. 12 In particular, the court in Evans examined the program's compliance with the Marine Mammal Protection Act (MMPA), National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). 13 Section II of this Note presents the facts of Evans. 14 Section III of this Note examines the applicability and effects of the Navy's implementation and use of new low frequency sonar on the environment, especially marine mammal wildlife, in light of existing environmental legislation. 15 Section IV discusses the Northern District of California's rationale for issuing an injunction, restricting the Navy's peacetime use of the low frequency sonar in Evans. 16 Section V analyzes the Northern District of California's decision in light of existing precedent, and offers possible solutions to better maintain an adequate balance between national defense concerns and environmental protection concerns.' 7 Finally, Section VI concludes with an assessment of the impact the District Court's decision will have on the balance between protecting marine wildlife and maintaining national security.' 8 II. FACTS In late 2002, plaintiffs, various environmental groups (Natural Resources Defense Council or NRDC), 19 sought a permanent in- 11. See Kiamos, supra note 1, at (acknowledging importance of maintaining balance between environmental protection and Navy training). 12. See generally, Evans, 279 F. Supp. 2d at 1129 (reviewing Navy's use of SURTASS LFA sonar and compliance with environmental laws). 13. See id. at (discussing impact of environmental legislation on Navy training). 14. For a discussion of the facts of Evans, see infra notes and accompanying text. 15. For a discussion of the applicability and effects of Navy training on the environment in light of existing environmental legislation, see infra notes and accompanying text. 16. For a discussion of the court's analysis in Evans, see infra notes and accompanying text. 17. For a critical analysis of the district court's decision, see infra notes and accompanying text. 18. For a discussion of the impact of the district court's decision, see infra notes and accompanying text. 19. Evans, 279 F. Supp. 2d at Included amongst the plaintiffs in Evans was also "a concerned individual." Id. Published by Villanova University Charles Widger School of Law Digital Repository,

5 396 VILANoVA Villanova Environmental ENVIRONMENTAL Law Journal, LAw Vol. JouRNAL 15, Iss. 2 [2004], Art. [Vol. 3 XV: p. 393 junction against federal officials to prevent the United States Navy's peacetime use of a low frequency sonar system, LFA, for training, testing and routine operations. 20 NRDC charged that the Navy's unrestricted use of the new sonar would result in irreparable injury by harassing, injuring and killing marine mammals and other sea creatures with sensitive hearing. 21 NRDC further noted that many of the animals affected by the Navy's use of LFA are already endangered, including whales, dolphins, seals, turtles and salmon. 22 NRDC raised two main issues. 23 First, it claimed that the National Marine Fisheries Service (NMFS) improperly approved the Navy's use of the new sonar in as much as seventy-five percent of the world's oceans in violation of the MMPA, the ESA and the Administrative Procedure Act (APA).24 Second, NRDC claimed that the Navy issued an inadequate Environmental Impact Statement (EIS), which violated the NEPA. 25 In response, the Navy argued that it had fully complied with all applicable laws. 26 The Navy further argued that enjoining the peacetime use of LFA sonar would harm national security because training and testing is necessary for military readiness. 2 7 The court granted NRDC's motion for a preliminary injunction on October 31, Both parties filed cross-motions for summary judgment on April 15, On June 30, 2003, the court heard the parties' cross-motions for summary judgment See id. at (discussing procedural history of case). 21. See id. For further discussion of the plaintiff's claims regarding irreparable injury to marine mammals, see infra notes and accompanying text. 22. See id. at The district court observed that "the populations of many of these creatures, once abundant, have shrunk, and some are on the verge of extinction." Id. 23. For a discussion of the two issues raised by NRDC, see infra notes and accompanying text. 24. Evans, 279 F. Supp. 2d at NMFS and the Navy have an armslength regulatory relationship for the purpose of ensuring enforcement and compliance with federal environmental laws. See id. Together, the two agencies prepared the "Final Rule," as required by federal law, to ensure compliance with environmental legislation during military operations. Id. 25. See id. at (addressing NRDC's complaint that Navy violated NEPA based on inadequate environmental impact statement). 26. Id. at 1138 (noting defenses to NRDC's allegations that Navy violated various environmental laws). 27. Id. (discussing Navy's defense to plaintiffs' alleged environmental legislation violations). 28. Id. (discussing request for preliminary injunction). 29. Evans, 279 F. Supp. 2d at 1138 (discussing requests for summary judgment). 30. For a discussion of the court's analysis, see infra notes and accompanying text. 4

6 2004] Chopko: NRDC v. Evans: Northern District of California Delivers Sound Jud "SOUND" JUDGMENT III. BACKGROUND A. SURTASS LFA Anti-Submarine Warfare (ASW) is an essential component of the Navy's defense mission. 3 1 The Navy began developing SUR- TASS LFA in 1985 to supplement the ASW mission and enable the United States to better detect a new generation of quieter Soviet submarines. 32 The SURTASS portion of the system is a low frequency passive surveillance system that is deployed on surface ships and is capable of collecting and analyzing acoustic data. 33 The LFA portion of the system consists of a series of acoustic transmitters placed on a cable below a surface ship. 3 4 The LFA functions by using transmitters to send out "pings" which bounce off underwater objects and then echo back to the operator. 35 The system's operation has been described as having the ability to "light up" enemy submarines with acoustics, similar to the way a floodlight can illuminate an intruder in a dark backyard. 36 Since the Navy first began sea trials for SURTASS LFA in the 1990s, the military threat has shifted to new concerns regarding the growing submarine fleets of "non-allied" nations such as the Russian Federation, the People's Republic of China, Iran and North Korea. 3 7 The Navy reports that there are currently two hundred and twenty-four submarines operated by these "non-allied" nations, 31. See SURTASS LFA Website, supra note I (explaining purpose and operation of SURTASS LFA). 32. See generally Teresa B. Salamone and James L. Noles, Jr., Judge Enjoins Testing of Naval Surveillance Technology, 18 NAT. REsoURCES & ENV'T 31 (2003) (discussing background development of SURTASS LFA). The reported cost of the program was "more than $300 million." Id. at See SURTASS LFA Website, supra note 1 (explaining unclassified purpose and operation of SURTASS LFA). 34. See id. (explaining that LFA system is used when target is "too quiet to be detected by passive SURTASS system alone."). 35. See id. (comparing underwater sound pulse or "ping" to manner of stereo speakers turning electrical impulses into sound waves in air). 36. Weiss, supra note 4 (describing far-reaching capabilities of SURTASS LFA sonar). 37. See Salamone, supra note 32, at 57 (discussing military preparedness concerns). See also Robert McClure, Tests on Marine Mammals to Look for Sonar Link to Injuries, SEA-I-rLE POST-INTELLIGENCER (July 12, 2003), available at nwsource.com/local/130609_sonarl 2.html. The author quotes Rear Adm. Robert Moeller in congressional testimony regarding use of new sonar: "[n]ew ultra-quiet diesel-electric submarines armed with deadly torpedoes and cruise missiles are proliferating widely." Id. Published by Villanova University Charles Widger School of Law Digital Repository,

7 398 VILLANOVA Villanova Environmental ENVIRONMENTAL Law Journal, LAW Vol. JouRNAL 15, Iss. 2 [2004], Art. [Vol. 3 XV: p. 393 many of which are "quieter and more deadly than ever before." 38 According to the Navy, undetected submarines are equivalent to an underwater terrorist and have the ability to threaten not only surface ships, but America's shores as well. 39 Recognizing the need to comply with existing environmental legislation, the Navy has spent over sixteen million dollars conducting scientific research regarding the sonar system's effect on the environment. 40 As a result of such extensive research, the Navy established an independent scientific working group, responsible for recommending research priorities. 41 In addition, the Navy reports that it conducted quantitative modeling of animal movements and acoustical exposure, as well as the employment of on-going monitoring and mitigation programs, to minimize the risk of harm to marine mammals from the new sonar. 42 B. Marine Mammal Protection Act Congress enacted the MMPA in 1972 to "promote conservation of ocean-dwelling mammals. '43 The MMPA prohibits the taking of marine mammals with certain statutory exceptions. 44 The term "take" is defined broadly under the MMPA to mean "harass, hunt, capture, or kill," or attempt to do any of the preceding acts. 4 5 Negligently operating an aircraft or a vessel is also an activity encompassed by the MMPA's "take" definition. 46 The term "harassment" under the MMPA means "any act of pursuit, torment, or annoyance" that "has the potential to injure a marine mammal," or that "has the potential to disturb a marine 38. See SURTASS LFA Website, supra note 1 (explaining need to detect new submarines at long-range to ensure adequate reaction time). 39. See id. (explaining that only low frequency active sonar provides longrange submarine detection capability that Navy needs). The Website explains that "[t] he Navy Fleet Commanders in Chief (CINCs) have determined that SURTASS LFA sonar is a crucial element of the Navy's anti-submarine warfare force and is an asset required for our national security." Id. 40. See id. (noting that Navy developed Environmental Impact Statement in addition to "state-of-the-art marine mammal mitigation system."); see generally Margaret M. Carlson, Environmental Diplomacy: Analyzing Why the U.S. Navy Still Falls Short Overseas, 47 NAVAL L. REv. 62 (2000) (discussing military's requirements and attempts to comply with environmental protection laws). 41. See SURTASS LFA Website, supra note 1 (noting establishment of independent scientific working group). 42. See id. (explaining additional steps Navy is taking to protect marine life). 43. Kiamos, supra note 1, at (explaining overview of MMPA). 44. See 16 U.S.C. 1371(a) (2000) (listing exceptions for takings) U.S.C. 1362(13) (2000) (defining term "take"). 46. See Kiamos, supra note 1, at 464 (citing 50 C.F.R (2001)). 6

8 2004] Chopko: NRDC v. Evans: Northern District of California Delivers Sound Jud "SOUND" JUDGMENT mammal" by disrupting its behavioral patterns. 47 Harassment that has the potential to injure a marine mammal is level "A" harassment. 48 Harassment that will merely disturb a marine mammal by disrupting behavioral patterns is level "B" harassment. 49 The distinction between level "A" and "B" harassment is material because it indicates the type of authorization required for incidental takings. 50 Several categories of activities are excluded from application of the MMPA. 5 1 For example, the MMPA allows American Indians, Aleuts and Eskimos to take marine mammals for subsistence purposes or to make or sell native craft articles. 52 In addition, the MMPA permits the taking of a marine mammal as a means of selfdefense. 5 3 Finally, the MMPA provides an exception for situations where it is imminently necessary to deter a marine mammal from damaging fishing gear or catch. 54 The Secretaries of Commerce and the Interior may waive the restriction on takings under the MMPA if, on the basis of scientific evidence, they determine that the taking will be consistent with principles of resource protection and conservation. 55 The Secretaries, however, rarely use this waiver provision and cannot use it if it will result in the taking of affected species which are below "optimum sustainable population levels." 56 The MMPA authorizes the Secretary to allow for "incidental takes" where proposed activities may result in the unintentional taking of small numbers of marine mammals. 57 To approve an "inci U.S.C. 1362(18) (A) (2000); see also 50 C.F.R (2001) (dividing harassment into two levels). "Level A harassment" means an act of pursuit, torment or annoyance having the potential to injure a marine mammal. Id. "Level B harassment" means an act of pursuit, torment or annoyance, which has the potential to disturb a marine mammal in the wild by causing disruption of behavioral patterns. Id. 48. Kiamos, supra note 1, at 465 (explaining distinctions between Level A harassment and Level B harassment). 49. Id. (describing "Level B" harassment). 50. See id. (explaining that types of authorizations required for incidental takings are different for Level A and Level B harassment). 51. Id. at 466 (discussing various activities to which MMPA taking provisions do not apply). 52. See id. (citing 16 U.S.C. 1371(b) (2000)). 53. See Kiamos, supra note 1, at 466 (citing 16 U.S.C. 1371(c) (2000) (providing for self-defense exception)). 54. Id. (citing 16 U.S.C. 1371(a) (4) (A) (2000)). 55. Id. (citing 16 U.S.C. 1371(a) (3) (A) (2000)). 56. Id. (citing 16 U.S.C (a) (3) (B) (2000)) (discussing infrequent use of waiver provision). 57. Id. at (citing 16 U.S.C (a) (5) (A) (2000)) (discussing "incidental take" provision)). Published by Villanova University Charles Widger School of Law Digital Repository,

9 400 VILLANOVA Villanova Environmental ENVIRONMENTAL Law Journal, LAW Vol. JouRNAL 15, Iss. 2 [2004], Art. [Vol. 3 XV: p. 393 dental take," the Secretary must conclude that there will be a "negligible impact" on the affected species. 58 In planning and implementing training exercises, determining whether an agency is allowed to "take" is subject to an arbitrary and capricious review standard under the APA. 59 Although the MMPA does not provide for automatic exemptions for national security matters, Naval training exercises may be exempt from complying with MMPA regulations under a "necessity defense" when circumstances make it impossible for the Navy to comply with the law. 60 To successfully assert a "necessity defense" under the MMPA, a crisis must exist where a commander is forced to choose between violating the MMPA (potentially harming or taking a marine mammal) and taking no action (producing a greater harm to national security).61 C. Judicial Interpretation of the MMPA 1. Strahan v. Linnon Several courts have considered the application of the MMPA to federal agency actions and have held that a permit is required if the agency's actions may result in the taking of a marine mammal. 62 In Strahan v. Linnon, the court held that the U.S. Coast Guard was required to apply for a small take permit if it anticipated taking a marine mammal during the course of its operations. 63 In Strahan, plaintiffs filed citizen suits alleging that the Coast Guard failed to comply with NEPA, the ESA and the MMPA after evidence showed 58. See Kiamos, supra note 1, at (discussing standards for "incidental takes"). 59. See generally 5 U.S.C. 706(2) (A) (2000) (noting standard of review). 60. See Kiamos, supra note 1, at 479 (discussing incidental harassment authorizations). 61. See id. (explaining instances where Naval training exercises may potentially be excused from MMPA compliance). See also John Alan Cohan, Modes of Warfare and Evolving Standards of Environmental Protection Under the International Law of War, 15 FLA. J. INT'L. L. 481, (2003) (discussing military operations and effect on environment). The U.S. Navy Commander's Handbook on the Law of Naval Operations addresses the protection of the environment during times of conflict. Id. at 534. "It is not unlawful to cause collateral damage to the natural environment during an attack upon a legitimate military objective. However, the commander has an affirmative obligation to avoid unnecessary damage to the environment to the extent that it is practicable to do so consistent with mission accomplishment." Id. at See Kaimos, supra note 1, at (reviewing judicial interpretation of MMPA application to federal agency actions). 63. See Strahan v. Linnon, 967 F. Supp. 581, 627 (D. Mass. 1995) (holding agency required to obtain small take permit for potential takes during procedural operations). 8

10 2004] Chopko: NRDC v. Evans: Northern District of California Delivers Sound Jud "SOUND"JUDGMENT that the Coast Guard had struck and killed two Northern Right whales with a watercraft. 64 The Coast Guard had not prepared any form of environmental compliance documentation for operations in the area where the whales were struck and killed. 65 The court noted that the Coast Guard failed to apply for a MMPA permit. 66 Consequently, the court issued a preliminary injunction, ordering the Coast Guard to apply for a permit "for all Coast Guard operations that may accidentally 'take' a Northern Right whale regardless of whether defendants consider the possible taking unlikely." United States v. Hayashi Courts have generally interpreted the MMPA's "harassment" criteria to require more than a temporary, non-injurious alteration of marine mammal behavior. 68 For example, in United States v. Hayashi, a fisherman was charged with violating the MMPA when he fired shots near porpoises to distract them from eating bait on his fishing line. 69 Initially, the fisherman was convicted of knowingly taking a marine mammal because he had harassed or attempted to harass the porpoises by shooting near them. 70 The Ninth Circuit reversed the fisherman's conviction, however, holding that "reasonable actions... not resulting in severe, sustained disruption of the mammal's normal routine... [of] eating fish or bait off a fishing line are not rendered criminal by the MMPA or its regulations. 7 1 Because the fisherman's actions did not amount to a substantial disruption of the mammal's routine, the court determined that his acts did not qualify as harassment under the MMPA Id. at 610 (noting that Right whales are most endangered species of large whales). Evidence of the killing of the two whales was undisputed. Id. at Id. at 612 (discussing failure of Coast Guard to have completed small take application). 66. Id. at 632 (discussing rigid standard of MMPA requirements). 67. Id. (issuing preliminary injunction requiring Coast Guard to apply for permit). 68. For a discussion of courts' interpretation of MMPA's "harassment" criteria, see infra notes and accompanying text. 69. See United States v. Hayashi, 5 F.3d 1278, 1279 (9th Cir. 1993) (holding no violation of MMPA because there was no sustained disruption of marine mammals' routine). 70. Id. (discussing findings of lower court). 71. Id. at 1284 (reversing lower court's opinion and concluding that insufficient evidence supported defendant's position). 72. Id. (demonstrating limitations of MMPA). Published by Villanova University Charles Widger School of Law Digital Repository,

11 402 VILANOVA Villanova Environmental ENVIRONMENTAL Law Journal, LAw Vol. JOuRNAL 15, Iss. 2 [2004], Art. [Vol. 3 XV: p Tepley v. National Oceanic & Atmospheric Administration Another case where "harassment" under the MMPA was at issue involved charges against an underwater photographer in Tepley v. National Oceanic & Atmospheric Administration. 73 In Tepley, a photographer and his friend approached a group of whales while traveling in their boat. 7 4 As the animals meandered around the boat, the photographer's friend entered the water to touch the whales. 75 One of the whales suddenly grabbed the friend and pulled her underwater while the photographer captured the incident on his video recorder. 76 Upon learning of the incident, the National Oceanic and Atmospheric Administration (NOAA) filed charges against both individuals, asserting that they had harassed the whales and annoyed them with the sound of the video camera. 77 The court in Tepley applied the standard established by the Ninth Circuit in Hayashi: "harassment" under the MMPA had to involve a direct, serious disruption of a marine mammal's customary habits. 78 The court determined that there was no evidence to support the assertion that the boat caused erratic behavior in the mammals in any way. 79 Furthermore, the court pointed out that merely chasing the whales, but not causing them to flee, did not constitute harassment. 80 Finally, the court held that even if the camera made some noise, such slight noise alone would not be sufficient to constitute harassment under the MMPA, as defined in Hayashi. 81 D. Agency Interpretation of the MMPA In addition to judicial interpretation of the MMPA, the NMFS has issued several statements indicating its supervisory control over harassment of marine mammals. 8 2 Such supervisory control is evi- 73. See Tepley v. Nat'l. Oceanic & Atmospheric Admin., 908 F. Supp. 708 (N.D. Cal. 1995) (refusing to find "taking" by "harassment" where photographer recorded video of whale dragging friend underwater). 74. Id. at 709 (discussing facts of case and explaining incident began when photographer's friend began gently touching whale). 75. Id. (discussing facts of case). 76. Id. (noting video recordings captured by photographer were later broadcast on national television). 77. Id. (discussing allegations raised by NOAA and noting defendant was not charged with injuring whale in any way). 78. Tepley, 908 F. Supp. at 710 (citing United States v. Hayashi, 22 F.3d 859, 864 (9th Cir. 1993)). 79. Id. at 711 (concluding that there was no "substantial disruption"). 80. Id. at 712 (interpreting "harassment" under MMPA). 81. Id. (discussing degree of "harassment" required to show MMPA violation). 82. See Kiamos, supra note 1, at 478 (noting applicability to and close scrutiny of military training). 10

12 2004] Chopko: NRDC v. Evans: Northern District of California Delivers Sound Jud "SOUND" JUDGMENT denced by the NMFS's incidental harassment authorizations. 83 For example, the NMFS provided incidental harassment authorizations for missiles launched from Vandenberg Air Force Base because the launches may have resulted in a temporary reduction in the number of seals on the beach. 84 In addition, the NMFS authorized the noise from helicopters flying over ice in Alaska under the MMPA because the noise affected seals. 8 5 Finally, the NMFS has allowed for incidental harassment to occur where marine mammals in the vicinity of a seismic source reacted to the sounds generated or the visual cues. 86 IV. NARRATrVE ANALYSIS In Natural Resources Defense Council v. Evans, the Northern District of California issued an injunction limiting the Navy's use of low frequency sonar in an attempt to protect both military preparedness and marine wildlife. 87 In its analysis, the court focused on several prominent environmental legislative acts, including the MMPA. 88 A. MMPA Analysis The court in Evans determined that the Navy's.plans to employ the new sonar did not comport with the MMPA in respect to several key elements of the statute. 8 9 In its analysis, the court considered five alleged violations of the MMPA resulting from an inadequate 83. Id. (noting supervisory control regarding incidental take authorizations). 84. Id. (citing Small Takes of Marine Mammals Incidental to Specified Activities; Lockheed Launch Vehicles at Vandenberg Air Force Base, Ca., 62 Fed. Reg. 26,779, 26, (May 15, 1997)). 85. Id. (citing Small Takes of Marine Mammals Incidental to Specified Activities; Oil and Gas Exploration Drilling Activities in the Beaufort Sea, 62 Fed. Reg. 37,881, 37,883 (July 15, 1997)). 86. Id. at 479 (citing Small Takes of Marine Mammals Incidental to Specified Activities; Offshore Seismic Activities in the Beaufort Sea, 62 Fed. Reg. 19,553, 19,554 (Apr. 22, 1997)). 87. See Natural Res. Def. Council v. Evans, 279 F. Supp. 2d 1129 (N.D. Cal. 2003) (granting in part and denying in part both parties motions for summary judgment). The order did not preclude the Navy from using the low frequency sonar during wartime, and acknowledged that the Navy must be allowed to train with it beforehand in various oceanic conditions and under prescribed circumstances. Id. at For a discussion of the court's MMPA analysis, see infra notes and accompanying text. 89. See Natural Res. Def. Council v. Evans, 279 F. Supp. 2d 1129, (N.D. Cal 2003) (discussing Navy's compliance with MMPA requirements). Published by Villanova University Charles Widger School of Law Digital Repository,

13 404 VILLANOVA Villanova Environmental ENVIRONMENTAL Law Journal, LAW Vol. 15, JouRNAL Iss. 2 [2004], Art. [Vol. 3 XV: p. 393 Final Rule for the implementation of the LFA sonar issued by NMFS Specified Geographical Region The court determined that in order to comply with the MMPA, the Final Rule "must authorize the Navy to operate in only a limited number of geographical regions at any given time." 9 ' NRDC alleged that the biomes and provinces identified by NMFS were too large. 92 Specifically, they asserted that such a vast area would be inappropriate as a specified geographic region and, as such, violated the MMPA. 93 The Navy argued that, under the MMPA, there is no requirement that the specified regions be small, as long as the regions are not any larger than necessary "to accomplish the specified activity." 94 Moreover, the Navy argued that large areas were needed for an LFA sonar mission to remain within one, or at most two, specified geographic regions. 95 The court concluded that even though the SURTASS LFA system called for a large geographic area in order to operate, it was particularly troublesome that the geographical regions chosen by NMFS and the Navy "undisputedly did not have homogeneous ecological or biogeographical characteristics." 96 According to the court, the Final Rule was erroneous because it did not preclude the Navy from applying to proceed in all fifty-four provinces in a given 90. For a discussion of the district court's analysis of the five alleged MMPA violations, see infra notes and accompanying text. 91. Evans, 279 F. Supp. 2d at (concluding that Navy had failed to indicate in Final Rule that it would limit operations to specified geographic location as required by MMPA). 92. Id. at The Navy's Final Rule authorized incidental takings by Level A and Level B harassment of particular marine mammals in fifteen different biomes. Id. 93. Id. (noting plaintiffs reference to "specific geographical region" at 16 U.S.C. 1371(a)(5)(A)). 94. Id. at (discussing Navy's argument regarding specified geographic locations). 95. Id. at The Navy contended that fairly large areas are needed to operate LFA sonar within a geographic region. Id. The Navy pointed out that because LFA sonar bounces from the ocean bottom to the surface and back again, small geographic regions would be "functionally inappropriate." Id. See also SURTASS LFA Website, supra note 1 (discussing operation of SURTASS LFA sonar). 96. Evans, 279 F. Supp. 2d at (noting that because Navy's Final Rule contained no limit on how many provinces would be involved in any operation of LFA sonar, no specific geographical limitations were established). 12

14 2004] "SOUND" JUDGMENT 405 Chopko: NRDC v. Evans: Northern District of California Delivers Sound Jud year, nor did it preclude NMFS from authorizing the deployment of LFA worldwide. 97 Even though the Navy had not indicated that it would ever attempt to operate in all fifty-four provinces, because it was currently not capable of doing so, the court held that the Final Report was in error because it failed to limit the take of marine mammals to a "specified geographic region." 98 Accordingly, the District Court granted NRDC's motion for summary judgment regarding the Navy's authorization to operate in only a limited number of geographical regions at any given time Small Numbers Provision Next, the District Court held that NMFS violated the small numbers provision of the MMPA because it used an erroneous definition of "small numbers" which did not comport with the Act. 100 The court explained that even though the defendants could reasonably interpret the meaning of "small numbers," they could not ignore the statutory requirement for permits where a potential permittee must show that the taking will "[be] small and have a negligible impact on the affected species." 1 1 According to the court, the "small numbers" and the "negligible impact" requirements needed to be defined so that each term had its own meaning The Final Rule's Definition of "Harassment" NRDC next argued that the Navy's Final Rule used an illegal definition of "harassment." 10 3 Specifically, NRDC pointed out that the Final Rule used a different definition for "Level B harassment" than that set forth in the statute. 104 According to NRDC, the Navy's 97. Id. (discussing potential impact of inadequate Final Rule). 98. Id. at 1147 (discussing compliance with specified geographic location criteria under MMPA). 99. Id. (granting NRDC's motion for summary judgment regarding extent of geographical regions) See generally id. at (discussing "small numbers" requirements under MMPA) Evans, 279 F. Supp. 2d at 1152 (holding that definition of "small numbers" allowing taking of up to 12% of species violates Congressional intent) Id. at 1153 (concluding Navy's definition was erroneous because it combined two elements of test into single standard). Consequently, the court ruled that the Navy's interpretation was "arbitrary and capricious" under the APA. Id See generally id. at (discussing Final Rule's definition of "harassment") Id. at 1153 (noting plaintiffs' claim). The Navy's Final Rule states: "For Level B incidental harassment takings, NMFS will determine whether takings by harassment are occurring based on whether there is a significant behavioral Published by Villanova University Charles Widger School of Law Digital Repository,

15 406 VILLANOVA Villanova Environmental ENVIRONMENTAL Law Journal, LAw Vol. 15, JouRNAL Iss. 2 [2004], Art. [Vol. 3 XV: p. 393 alleged alteration of "harassment" changed the statutory definition in two key respects: (1) it required that there be an actual disruption of behavioral patterns and notjust a potential for disruption as required by the statute; and (2) it required that the disruption be significant, even though the statute contained no such limitation After a careful analysis of the language of the MMPA, the court determined that the Navy had complied with the statutory requirements in creating the Final Rule The court first pointed out that the Navy had considered potential harassment at length in formulating the Final Rule Even though NMFS may have used an erroneous definition of "harassment" under the MMPA in the Final Rule, the court indicated that such an erroneous definition did not appear to have caused any harm Next, the District Court determined that NMFS had not acted outside of its scope of discretion by interpreting the statutory language "disruption" to require a significant change According to the court, NMFS' interpretation of the statutory language "disruption of behavior patterns" could appropriately be paraphrased as "a significant behavioral change in a biologically important behavior activity." 110 It was apparent to the court that the two standards were similar in meaning. 11 Accordingly, the court denied NRDC's motion for summary judgment on the issue of whether NMFS applied change in a biologically important activity, such as feeding, breeding, migration or sheltering." Id. The Final Rule also provides: "Level B harassment taking occurs if the marine mammal has a significant behavioral response in a biologically important behavior or activity." Id. (citing 67 Fed. Reg. 46,740) Id. at 1154 (noting plaintiffs' major arguments against Navy's "harassment" definition in Final Rule) Evans, 279 F. Supp. 2d at (comparing Navy's and NRDC's arguments regarding definitions of "potential to disturb," "significance requirement," and "impact on individual mammals") Id. at 1157 (discussing impact on single animal versus impact on all animals standards) (citing 67 Fed. Reg. 46,780) Id. at 1158 (noting proven lack of harm to animals from LFA). The Evans court noted that NMFS acted arbitrarily and capriciously in failing to abide by Congress' express definition of harassment in the MMPA; however, the plaintiffs had not shown any injury. Id Id. at (discussing discretion of NMFS to interpret terminology used in Final Rule) Id. (noting analogous meaning of "disruption of behavior patterns" and "significant behavioral change in a biologically important behavior activity," despite different choice of words) Evans, 279 F. Supp. 2d at (noting no significant difference in word meaning). 14

16 2004] Chopko: NRDC v. Evans: "SOUND" Northern District JUDGMENT of California Delivers Sound Jud the wrong standard for Level B harassment in preparing the Final Rule Negligible Impact With regard to the "negligible impact" requirement under the MMPA, NRDC argued that the Navy's plan to deploy LFA sonar in a vast portion of the Pacific Ocean did not constitute a "merely negligible impact." 113 The Navy responded, however, that the "taking" would be capped at a particular percentage, and that the likely impact would be far less because they would generally avoid operating in coastal areas, where concentrations of marine mammals are highest, and because they would employ mitigation measures The court agreed with NRDC and held that, without more restrictions on deployment of LFA sonar in sensitive areas and during sensitive periods, there could be occasions where the impact on particular populations is not "merely negligible."' 15 Therefore, the court noted that enhancing the required mitigation measures was necessary to ensure "negligible impact." Mitigation and Monitoring Finally, the court addressed the monitoring and reporting requirement of "takes" under the MMPA. 117 Although in the Final Rule NMFS proposed several measures designed to limit the harm to marine mammals, the court ultimately concluded that these proposals were insufficient under the requirements of the MMPA Id. at 1157 (denying plaintiffs summary judgment motion on issue of appropriate "harassment" definition) Id. at (discussing plaintiff's argument regarding negligible impact requirement under MMPA) Id. at 1158 (discussing Navy's planned mitigation efforts); but see id. at 1158 (pointing out that at same time, Navy expressed need to continue to train in coastal waters) Id. at 1159 (pointing out that under Navy's Final Rule, harassment by LFA sonar of up to 12% of very small populations could be detrimental) Evans, 279 F. Supp. 2d at 1159 (noting need to continue monitoring). The Evans court also noted that if the annual take authorized by each year's LOA is exceeded and is not limited to harassment but involves actual injury and death, the negligible impact finding must be revisited. Id See id. at (explaining that Congress imposed stringent standard regarding mitigation and monitoring); see also 16 U.S.C (a) (5) (A) (2000) (stating that under mitigation and monitoring requirements of MMPA, agencies must adopt measures to ensure "least practicable adverse impact" on marine mammals) See Evans, 279 F. Supp. 2d at 1164 (listing Final Rule proposals). The Final Rule proposals included: (1) a 2 kilometer (1.2 nautical miles) exclusion zone around LFA source where operations would be shut down if marine mammals or sea turtles were detected; (2) excluding as "off limits" coastal areas within Published by Villanova University Charles Widger School of Law Digital Repository,

17 408 VILLANOVA Villanova Environmental ENVIRONMENTAL Law Journal, LAw Vol. 15, JouRNAL Iss. 2 [2004], Art. [Vol. 3 XV: p. 393 NRDC argued that the Navy's mitigation proposals were insufficient to achieve "the least practicable adverse impact," and that NMFS "arbitrarily failed to adopt additional, more stringent measures." 119 The Navy and NMFS contended, however, that the measures the Navy chose were within its discretion and other measures would be unnecessary and impractical. 120 Although the court commended the Navy's attempts at establishing an "exclusion zone" to protect marine wildlife during LFA deployment, it noted that realistic detection of all animals within the exclusion zone would not be possible. 121 In addition, the court explained that the Navy could employ alternatives, such as pre-operation visual surveys by helicopters or small crafts, to ensure the taking of only small numbers of marine mammals. 122 Accordingly, the court granted NRDC's motion for summary judgment regarding the adequacy of the Navy's mitigation and monitoring under the MMPA. 123 The District Court attempted to reconcile the interests of both parties by granting in part and denying in part each party's motions for summary judgment. 124 The court issued an injunction that allowed the Navy to meet its needs for peacetime training and testing while protecting marine mammals and other sea animals. 125 V. CRITICAL ANALYSIS The Northern District of California's decision in Evans is consistent with existing precedent addressing the MMPA's application to actions having the potential to interfere with marine mammals' 12 nautical miles of shoreline, and limiting received levels of LFA sonar to 145 db at known human dive sites; and (3) forbidding deployment of LFA sonar in the Arctic or Antarctic. Id. at See id. at (discussing limitations of Navy's proposed mitigation measures) See id. at 1160 (listing measures implemented to limit harm to marine mammals) See id. (explaining that visual monitoring of smaller animals would not be effective, especially in rough seas or in dark and that passive sonar often overlooks quieter animals) See id. at The court noted this option of aerial surveillance could only be used when LFA is deployed during daylight and when weather permits to ensure the least practicable adverse impact. Id See Evans, 279 F. Supp. 2d at 1164 (concluding that Navy acted arbitrarily and capriciously by failing to: (1) extend coastal exclusion zone; and (2) use aerial surveys for close to shore LFA missions) For a discussion of the court's analysis in Evans, see supra notes and accompanying text See Evans, 279 F. Supp. 2d at 1139 (summarizing holding which resulted in balancing of both parties' interests). 16

18 2004] Chopko: NRDC v. Evans: "SOUND" Northern District JUDGMENT of California Delivers Sound Jud activities The decision is troubling, however, due to the detrimental effects it may have on the Navy's ability to maintain combat preparedness and to ensure national security. 127 The court properly identified the requirements for compliance under the MMPA. 128 Because it falls under the umbrella as a federal agency, the Navy, like all other agencies, is required to comply with the substantive and procedural requirements of the MMPA. 129 The Evans court followed existing Ninth Circuit precedent in determining the appropriate definition of "harassment" within the MMPA Like other cases addressing the "harassment" criteria, the Evans court affirmed the requirement for a potentially significant behavioral change or response in a biologically important behavior or activity As the Navy had correctly identified in the Final Rule, "harassment" requires more than a temporary, non-injurious alteration of marine mammal behavior. 132 Unlike the temporary or minor interruptions of wildlife behavior noted by the court in Tepley, the Evans court recognized that employing low-frequency sonar could potentially cause serious disruptions of marine mammals' customary habits.' 3 3 As such, the court in Evans readily determined that the steps taken by the Navy were insufficient to ensure that potential disruptions would not significantly impact marine wildlife activity.' For a discussion of the court's consistency with existing precedent regarding MMPA interpretation in Evans, see infra notes and accompanying text For a discussion regarding the detrimental effects the Evans decision may produce, see infra notes and accompanying text For a discussion of the court's MMPA analysis in Evans, see supra notes and accompanying text See Strahan v. Linnon, 967 F. Supp. 581, (D. Mass. 1995) (discussing and applying MMPA) See Evans, 279 F. Supp. 2d at (discussing "harassment" under MMPA); see also Strahan, 967 F. Supp. at (discussing "harassment" under MMPA); see also Hayashi, 22 F.3d at 1284 (holding no violation of MMPA because there was no sustained disruption of marine mammals' routine) See Evans, 279 F. Supp. 2d at 1155 (recognizing that NMFS' paraphrasing of "disruption of behavior patterns" to "a significant behavioral change in a biologically important behavior or activity" was allowed). See also Hayashi, 5 F.3d at (discussing requirement that there be potential for significant behavioral change or response in biologically important behavior or activity) For a discussion of the Navy's proposed definition of "harassment" in the Final Rule, see supra notes and accompanying discussion See Tepley v. Nat'l. Oceanic & Atmospheric Admin., 908 F. Supp. 708, 713 (N.D. Cal. 1995) (noting insufficient evidence of "substantial disruption" of wildlife) For a discussion of the district court's analysis regarding the sufficiency of the Navy's attempts to reduce environmental disruptions, see supra notes and accompanying text. Published by Villanova University Charles Widger School of Law Digital Repository,

19 410 VILLANOVA Villanova Environmental ENVIRONMENTAL Law Journal, LAw Vol. 15, JouRNAL Iss. 2 [2004], Art. [Vol. 3 XV: p. 393 In addition, the court's findings, that the Navy's Final Rule was insufficient under the MMPA's negligible impact and mitigation and monitoring requirements, reflect earlier courts' strict interpretation of Congress' intentions to control the safety of marine mammal wildlife under the MMPA Like other Ninth Circuit cases where the MMPA's negligible impact and mitigation and monitoring requirements have been discussed, the Evans court stressed that omissions in these areas, including the Navy's failure to extend the exclusion zone and failure to use aerial observation for LFA sonar missions operated close to shore, were "arbitrary and capricious acts." 136 Despite the Northern District of California's adherence to precedent and appropriate interpretation of the MMPA, its decision is problematic given the Navy's need to maintain effective national defense measures, particularly in light of the increasing threat level to national security today.1v? Even though the Navy has already made a substantial effort in assessing marine mammal impacts, developing mitigation efforts that will satisfy the MMPA is increasingly difficult and often results in significant impacts on naval readiness. 138 One commentator observed that meeting the requirements of the MMPA can be an expensive and time-consuming process. 139 As evidenced by the court's decision in Evans, carrying out military operations, while maintaining compliance with environmental legislation like the MMPA, may not be possible without severely limiting the extent and circumstances of the operations. 140 As a result of constraints upon naval training and military readiness due to leg See generally Tepley, 908 F. Supp. at 708 (discussing MMPA interpretation) SeeEvans, 279 F. Supp. 2d at For a discussion of the court's mitigation and monitoring analysis in Evans, see supra notes and accompanying text See Kiamos, supra note 1, at 480 (noting that current jurisprudence results in problems regarding MMPA compliance). The author states that "[t]he Navy's current antisubmarine skills are the result of decades of realistic and rigorous training, and antisubmarine sonar proficiency is difficult to regain after loss through atrophy." Id See id. at 484 (discussing difficulties in compliance measures required under MMPA) Id. at 485 (noting that parties resistant to Navy's use of sonar could easily resort to lack of clarity in MMPA's definition of "harassment" to preclude such operations) See id. at 487 (discussing possible ways to maintain effective balance between military preparedness and environmental protection). But see McClure, supra note 37 (quoting Rear Adm. Robert Moeller: "[the Navy] must conduct comprehensive and realistic combat training."). 18

20 20041 Chopko: NRDC v. Evans: "SOUND"JUDGMENT Northern District of California Delivers Sound Jud islation like the MMPA, avenues of potential redress are under review As a short-term course of action, the Department of the Navy should continue to work with the Departments of Commerce and the Interior to make reasonable proposals for legislative changes to the MMPA. 142 Specifically, the agencies should address the overly broad definition of "harassment" under the MMPA, which allows for only small numbers of incidental takes, and the MMPA's failure to balance national security requirements. 143 In addition, the Chief of Naval Operations proposed, as an amendment to the MMPA, the "Armed Forces Marine Mammal Protection Act.' 44 The intention behind this amendment is to harmonize the need to protect marine mammals while simultaneously maintaining military readiness within the MMPA's strict permitting regime. 145 The proposed subsection also provides that upon request of the Secretary of Defense, the President may, for purposes of national security, exempt armed forces operations from application of the MMPA. 146 As a long-term course of action, commentators suggest that the Navy consider using closed environments, such as quarries, lagoons or catch-ponds for testing, to avoid interfering with the MMPA. 147 As noted above, however, the geographic and spatial requirements 141. See Kiamos, supra note 1, at (advancing potential corrective actions to ensure adequate naval sonar compliance with MMPA such as enhanced agency cooperation and interaction, changes to definition of "harassment," amendment of MMPA, and exploration of alternative training methods) See id. at (discussing possible short-term courses of action to ensure adequate compliance with MMPA) See id. at 489 (noting that these MMPA issues "affect readiness, compromise the national military strategy, and place sailors and marines at an unnecessary greater degree of risk."). The author suggests that a proposed amendment to the MMPA would clarify that "harassment" does not apply to actions resulting in insignificant changes in marine mammal behavior, thereby limiting the number of permits required under the MMPA. Id Id. at 491 (discussing proposed amendments to MMPA regarding Naval operations) See id. at The draft proposes that 16 U.S.C be amended to include a Marine Mammal Protection Procedures for the Armed Forces section which would intend for the incidental kill, serious injury or harassment of marine mammals during military operations to be limited to the lowest practical levels consistent with national security requirements. Id See Kiamos, supra note 1, at 492 (explaining that passage of proposed draft will ensure protection of marine mammals while making it easier to comply with Act by eliminating need to obtain permit under MMPA) See id. at 493 (suggesting long-term courses of action to ensure naval sonar training compliance with MMPA). Published by Villanova University Charles Widger School of Law Digital Repository,

21 412 VILLANovA Villanova Environmental ENVIRONMENTAL Law Journal, Vol. 15, Iss. 2 [2004], Art. LAW JOURNAL [Vol. 3 XV: p. 393 necessary to employ a system like SURTASS LFA make it difficult to effectively test in such closed environments. 148 Overall, it appears that it will be necessary to address Naval operations involving use of the new sonar and compliance with the MMPA from an administrative or legislative perspective. 149 As the Northern District of California made clear in its interpretation of the MMPA in Evans, the Act, as it currently reads, provides minimal flexibility regarding its protection of the environment. 150 VI. IMPACT As evidenced by the Northern District of California's decision in Evans, carrying out military operations, while maintaining compliance with environmental legislation like the MMPA, may be impossible without severely limiting the extent and circumstances of the operations Even though the District Court sought to maintain a balance between national security and providing adequate protection for marine wildlife, its strict application of the MMPA will likely result in more conservative training measures when employing the new sonar system The Northern District of California, guided by existing precedent, appropriately applied the MMPA to the Navy's use of sonar in Evans. 153 Unless the existing requirements of the MMPA are clarified or modified, it appears that military operations will continue to be restrained by the legislation as it presently exists. 154 As an alternative to appealing the decision of the Evans court, those who favor a more lenient interpretation of the MMPA and its application to military training operations may be required to re For a discussion of SURTASS LFA, see supra notes and accompanying text For a discussion of alternative approaches to complying with the MMPA, see supra notes and accompanying text For a discussion of the court's MMPA analysis in Evans, see supra notes and accompanying text For a discussion of the Evans court's analysis of the MMPA, see supra notes and accompanying text See generally, Kiamos, supra note 1 (discussing potential adverse effects of limitations placed on military operations due to need for compliance with MMPA) For a discussion of the district court's application of the MMPA, see supra notes and accompanying text See Kiamos, supra note 1, at 518 (suggesting that clarifying environmental requirements will allow military operations to train more effectively while protecting human health and environment). 20

22 2004] Chopko: NRDC v. Evans: "SOUND" Northern District of California Delivers Sound Jud JUDGMENT 413 sort to administrative or legislative resources Regulatory agencies should carefully consider Department of Defense and Naval assessments regarding the impact that restricting or modifying training or testing will have on national defense. 156 Proposed amendments to the MMPA may be one potential resolution to the problem of balancing military readiness impacts with environmental impacts in light of Naval training requirements Carolyn M. Chopko 155. For a discussion of potential short and long-term courses of action to ensure adequate naval sonar training compliance with the MMPA, see supra notes and accompanying text See Kiamos, supra note 1, at 519 (suggesting remedies for problems regarding compliance with environmental legislation in context of military training operations) See id. (suggesting remedies for problems regarding compliance with environmental legislation in context of military training operations). Published by Villanova University Charles Widger School of Law Digital Repository,